Rae v R

Case [2011] NSWCCA 211 14 September 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rae v R [2011] NSWCCA 211
Hearing dates: 22 June 2011
Decision date: 14 September 2011
Before: McClellan CJ at CL at 1
Hidden J at 2
Johnson J at 3
Decision:
Leave to appeal granted. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - sentence - knowingly take part in supply of commercial quantity of ecstasy - related offenders sentenced by different judges - different findings made by different judges - parity principle - objective legitimate sense of grievance not demonstrated - claim of error in assessment of objective seriousness - no error established - appeal dismissed
Legislation Cited: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Vu v R [2006] NSWCCA 188
McBeth v R [2009] NSWCCA 235
Mulato v R [2006] NSWCCA 282
Dwayhi v R; Bechara v R [2011] NSWCCA 67
R v Swan [2006] NSWCCA 47
Gurney v R; Willetts v R [2011] NSWCCA 48
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Mercieca [2004] VSCA 170
R v Rodden [2005] VSCA 24
R v Li [2005] NSWCCA 154
Lewins v R [2007] NSWCCA 189
R v Wei Pan [2005] NSWCCA 114
England v R; Phanith v R [2009] NSWCCA 274
Gill v R [2010] NSWCCA 236
Category: Principal judgment
Parties: Toni Maria Rae (Applicant)
Regina (Respondent)
Representation: Mr D Barrow (Applicant)
Mr DU Arnott SC (Respondent)
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/224420
Decision under appeal

Date of Decision:

2010-08-23 00:00:00

Before:

Garling DCJ

File Number(s):

2009/224420

Judgment

McCLELLAN CJ at CL : I agree with Johnson J.

HIDDEN J : I agree with Johnson J.

JOHNSON J : The Applicant, Toni Maria Rae, seeks leave to appeal with respect to a sentence imposed in the District Court on 23 August 2010 for a significant drug supply offence.

The Applicant pleaded guilty to a charge that, on 25 September 2009, at Edgecliff, she did knowingly take part in the supply of an amount of a prohibited drug, namely 1,000 tablets purported to be MDMA (ecstasy), being an amount not less than the commercial quantity applicable to that prohibited drug. This is an offence contrary to s.25(2) Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years.

The Applicant was sentenced by Garling DCJ to a non-parole period of three years and six months commencing on 8 October 2009 and expiring on 7 April 2013, with a balance of term of two years commencing on 8 April 2013 and expiring on 7 April 2015.

Grounds of Appeal

The Applicant relies upon the following grounds of appeal:

(a) Ground 1 - the sentence imposed upon the Applicant's co-offender, Adel Abhari, gives rise to a justifiable sense of grievance on the part of the Applicant.

(b) Ground 2 - the sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rae v R

Details

AGLC: Rae v R [2011] NSWCCA 211
Case: [2011] NSWCCA 211
Decision Date: 14 September 2011

CaseChat Overview and Summary

The appeal before the court involved Rae, the appellant, against the respondent, the Crown. The dispute arose from Rae's conviction and sentencing for his involvement in the supply of a commercial quantity of ecstasy. The case was heard in the High Court of Australia. The appellant contested the sentence imposed, arguing that it was inconsistent with the sentences handed down to co-offenders, despite different findings being made by various judges. Rae contended that this disparity breached the parity principle and sought to challenge the assessment of the objective seriousness of his conduct.

The legal issues before the court were whether the appellant's sentence was inconsistent with those of his co-offenders, and whether there was an error in the assessment of the objective seriousness of the offence. The court was required to consider the principle of parity, which mandates that similarly situated offenders should receive similar sentences, and whether the appellant had demonstrated an objective legitimate sense of grievance that warranted interference with the sentence. Additionally, the court needed to assess whether the primary judge erred in determining the objective seriousness of the offence.

The court held that while there were differences in the sentences imposed on the appellant and his co-offenders, these discrepancies did not amount to a breach of the parity principle. The court found that the appellant had not demonstrated an objective legitimate sense of grievance that would justify interference with the sentence. Furthermore, the court found no error in the primary judge's assessment of the objective seriousness of the offence. Consequently, the appeal was dismissed, and the sentence imposed on the appellant was upheld.

Orders